In Farmer v. Brennan, 511 U.S. 825, 847 (1994), the
Court decided"a prison
official may be held liable under the Eighth Amendment for denying humane conditions
of confinement only if he knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it." In this case, the
district court concluded plaintiff failed to meet her burden of establishing a constitutional
violation by presenting evidence jail officials knew of the substantial risk of physical
harm to prisoners in their facility and failed to take reasonable measures to prevent its
recurrence. Concluding the record indicates the contrary, we reverse.

I. Background

On the afternoon of October 13, 1998, Robert Martinez (Major Bob), the
administrator of the Huerfano County Jail in Walsenburg, Colorado,(1) escorted inmate
Tereza Gonzales(2) to the Jail commissary
after she requested a comb. Inside the small
room, Major Bob used his knife to open a package of combs and then, with the knife in
his hand, blade open, told Ms. Gonzales, "Once you're in this room, you belong to me."
Major Bob sexually assaulted her. On the same afternoon, Amanda Guel,(3) another
inmate, was summoned to the control room by Dominick Gonzales,(4) the senior detention
officer, who sexually assaulted her.

That evening, both women handed written statements describing the assaults to
two detention officers who called Huerfano County Sheriff John Salazar. Sheriff Salazar
then went to the jail and instructed the officers on duty to tell Ms. Guel and Ms. Gonzales
he had been notified and would speak to them the next morning.

Instead, Sheriff Salazar transported Ms. Gonzales to another of her court
appearances and learned she had written a second report on the sexual assault, which she
did not give him. Sheriff Salazar told her to give the statement to her public defender.

Shortly after her return to the women's pod at the Jail, however, Major Bob,
speaking over the intercom, summoned Ms. Gonzales to the control room.(5) There, Major
Bob grabbed her arm and stated, "Let's start off where we left off yesterday."
Ms. Gonzales told Major Bob "it was bad," but he "pressed his body" against hers and
tried to kiss her, before she "pushed [him] away and went back to the pod." During the
encounter, she stated he did not "have anything unzipped."

Although he did not speak with Ms. Gonzales until after the second encounter
with Major Bob and another of her court appearances on October 14th, Sheriff Salazar
did interview Ms. Guel around 1:00 p.m. that day. Later, he met with Ms. Gonzales and
her public defender, who, along with a Deputy District Attorney, instructed her to remain
silent.

Soon after, the District Attorney called Sheriff Salazar and told him to release
Ms. Guel and Ms. Gonzales immediately. That same afternoon, one of the District
Attorney's investigators arrived at the Jail. Following her investigation, Major Bob and
Dominick were suspended and later charged with and convicted of the assaults.

Ms. Gonzales filed this action under 42 U.S.C. § 1983, alleging "there were other
incidents of sexual assault at the Huerfano County Jail involving Martinez, Gonzales
and/or others of which Salazar and Martinez wereaware,andthat Salazar and Martinez
failed to take those steps necessary to assure the safety of the plaintiff." As
defendants,
she named Sheriff Salazar,(6) Huerfano
County,(7) Martinez, and Dominick Gonzales.
Ms.
Gonzales alleged defendants knew of the danger Major Bob and Dominick posed and
failed to protect her in violation of her Eighth Amendment rights.(8) Ms. Gonzales also
alleged Huerfano County owed a duty to employ competent law enforcement officers and
to supervise their conduct to prevent violations of prisoners' civil rights.

Sheriff Salazar and Huerfano County moved for summary judgment alleging the
undisputed facts sustained no constitutional violation and the doctrine of qualified
immunity barred any such claim against Sheriff Salazar. The Magistrate Judge
recommended granting the motion.

In an oral order from the bench, the district court embraced the Magistrate Judge's
order in its entirety, holding that while the sexual assaults were undisputed, Sheriff
Salazar's failure to prevent harm to Ms. Gonzales did not amount to deliberate
indifference. In response to prior incidents of sexual misconduct and violence at the Jail,
the court summarily concluded without citing any specific evidence, "Sheriff Salazar
took appropriate remedial measures at the time" but observed, Sheriff Salazar"was
unable to do anything" after the October 13th sexual assaults because Ms. Gonzales
"refused to discuss the matter with him on one occasion . . . on two occasions." Ms.
Gonzales seeks de novo review of that judgment.

II. Prior Incidents Establishing Notice

To meet the Farmer test that Sheriff Salazar knew of and
disregarded "an
excessive risk to inmate health and safety," 511 U.S. at 837, Ms. Gonzales presented a
series of incidents both preceding and following her assault to establish a genuine issue
of material fact that the sheriff was both "aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and [] must also draw the
inference." Id. Under this test, "an Eighth Amendment claimant
need not show that a
prison official acted or failed to act believing that harm actually would befall an
inmate;
it is enough that the official acted or failed to act despite his knowledge of a
substantial
risk of serious harm." Id. at 842 (emphasis added). "Whether a
prison official had the
requisite knowledge of a substantial risk is a question of fact subject to demonstration in
the usual ways, including inference from circumstantial evidence."
Id. (emphasis
added). To meet this test, Ms. Gonzales presented a series of incidents at the Jail, which,
she contends, cumulatively establishes Sheriff Salazar failed to protect her "despite his
knowledge of a substantial risk of harm." Id.

First, Ms. Gonzales presented evidence, including Sheriff Salazar's
testimony, he
had not conducted any employee performance evaluations since 1994, only occasionally
visited the jail, and left the investigation of all problems at the jail to his designee,
Sergeant Paul Zudar. Second, given this supervisory style, Ms. Gonzales set out a series
of specific incidents which occurred from August 1997 to October 1997.

Explaining his response to those events, Sheriff Salazar stated although
Major Bob, the Jail Administrator, "was concerned about the allegations, [] he didn't
want to take the step forward to investigate, so I assigned a Sergeant Mike(9) Zudar." In
one incident on August 7, 1997, inmate Brent Maldonado alleged he was beaten up in C-pod by
fellow inmates who were drinking vodka; Dominick was in the control room and
failed to respond to his screams.(10) On
August 10, 1997, Detention Officer Ruiz filed an
incident report stating he saw inmates from C-pod sitting in the control room. He noted
some inmates had bloodshot eyes and appeared to know how to run the controls and
"bragged about knowing how to run the controls." The inmates remained in the control
room for several hours before returning to their pod. He stated, "I overlooked the
situation because I was new to the job and did not know what to do."

On October 14, 1997, Sergeant Montoya, a female deputy, received a report that
Dominick entered the women's pod and exposed himself to inmates. Documenting their
complaints about the event, inmates Rebecca Flecksteiner(11) and Josette Montez
separately wrote statements describing a setting of lax security in which Dominick would
call female inmates to the meds room and taunt them over the intercom operated in the
control room to "show us your tits." Under his control, Ms. Flecksteiner complained
Dominick rewarded female inmates for participating or punished them for objecting.(12)
Asked about these reports, Sheriff Salazar stated he did not believe them: "[t]he majority
of the inmates that we have in our facility would conjure up and work with other inmates
to disbelieve ­ or discredit one officer, because they are strict on rules." When the matter
was referred for investigation, Sergeant Zudar testified he directly questioned
Dominick
about the report and credited his direct eye contact and calm over the inmates' reports.
No discipline followed.

Sometime in 1997, Stella Noga,(13)
who had served time at the Jail, met with
Huerfano County Commissioner Charles Montoya at his office and complained of sexual
and drug-related activities at the Jail, as well as her inability to get her prescription drugs.
Commissioner Montoya testified he met with Sheriff Salazar who "thought maybe it was
a personal vendetta, or to that effect. Because Stella was kind of ­ I don't know how you
would describe her, but I think kind of an arrogant little girl. And she did occasionally
cause problems, or whatever." Commissioner Montoya explained Ms. Noga's brother,
Miguel Duran,(14) is married to his
daughter, and he stated, "I know she was a
troublemaker."

On October 16, 1997, police officers in Pueblo, Colorado, arrested Dominick,
who was hostile and combative after being removed from a local bar for harassing female
dancers. Finally restrained with pepper spray, Dominick told officers he was a "cop in
Walsenburg" and threatened injury.(15) On
October 21, 1997, Sergeant Zudar placed a
written warning in Dominick's file for his violating "certain policies . . . one having
inmates in the control room," although the additional allegations of sexual misconduct
were found unsubstantiated. However, because of the Pueblo arrest, Sergeant Zudar
demoted Dominick from sergeant to deputy and placed him on probation for six months,
explaining Dominick had "basically been a good officer up until the Pueblo incident and
. . . him having inmates in the control room."

Ms. Gonzales further presented evidence of two incidents between October 1997
and October 1998, when the present sexual assaults occurred, to demonstrate the unsafe
atmosphere remained at the Jail. First, she listed an incident report in which an inmate
wrote that Dominick punched him after he had been restrained by other officers who had
left him alone with Dominick. Second, in April 1998, inmate Denise Tefteller wrote a
letter to Sheriff Salazar describing Dominick's mercurial temperament and arbitrary
system of rewards and punishments based on his mood.(16) In an affidavit, Ms. Tefteller
stated that when she was released, she gave her letter to Major Bob and asked him to
give it to Sheriff Salazar. In 2000, Sheriff Salazar responded to this affidavit in Ms.
Guel's civil action, stating he never saw the letter before his attorney handed it to him at
that time. He attested that prior to the October 1998 incidents, "I had never received any
substantiated information concerning prior sexual improprieties by these Detention
Officers." (emphasis added).

Finally, Ms. Gonzales described in detail Major Bob's sexual assault on
October 13, 1998, accompanied by the investigative report of the District Attorney's
Office. She also included Sheriff Salazar's incident report in which he noted the on duty
officer's concern the two female inmates' complaints involved Major Bob and Dominick
and the "females were showing signs of emotion as far as being upset. I then read the
other statement which will be done on a separate report. I then instructed Officer sierra
[sic] to inform these females that he notified me and that the statements they provided
would be Investigated [sic]" and that he would speak to them in the morning. Sheriff
Salazar described interviewing Ms. Guel and his meeting with Ms. Gonzales and her
public defenders. At that time, approximately 2:30 p.m., shortly after Ms. Gonzales'
second encounter with Major Bob, Sheriff Salazar wrote in his report Ms. Gonzales, on
the advice of counsel, refused to speak with him, telling him he had her statement from
the night before. Shortly after, he acknowledged the District Attorney's order to release
both women.

The Magistrate Judge rejected all of Ms. Gonzales' evidence of prior events
either as insubstantial and unsubstantiated or disconnected from any specific evidencethat Major Bob, the jail administrator, posed a substantial risk; that is, the generalized
atmosphere of the Jail would not suffice. Instead, "Salazar's deliberate indifference must
be tied specifically to acts of [Major Bob] of which Salazar was aware." Hence, to prove
Sheriff Salazar's deliberate indifference, the Magistrate Judge, citing Hovater v.
Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993), and Lopez v.
LeMaster,172 F.3d 756,
761 (10th Cir. 1999), asserted "plaintiff must present evidence that would establish that
Salazar had knowledge of facts that would lead to an inference that [Major Bob], not
other deputies, presented a 'substantial risk of harm.'" Embracing this recommendation,
the district court exonerated Sheriff Salazar from any constitutional consequence,
finding, because Ms. Gonzales refused to speak with him, "he was unable to do
anything." The court further found Sheriff Salazar "took appropriate remedial measures
at the time" in addressing past conduct, evidencing "his policy to take appropriate
remedial measures when anything was reported to him, including investigation and
further disciplinary action where appropriate." In granting the motion for summary
judgment, the court concluded Ms. Gonzales failed to present a triable issue of fact
Sheriff Salazar knew Major Bob posed a substantial risk of harm to her.

III. Summary Judgment

The district court adopted the Magistrate Judge's order denying Ms. Gonzales'
Eighth Amendment claim on the merits. Having found no constitutional violation in the
first instance, neither the Magistrate Judge nor the district court ruled on the issue of
qualified immunity; thus, we do not review summary judgment here "somewhat
differently than other summary judgment rulings." Hovater, 1
F.3d at1066, citing
Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir.
1990). Rather, we review
the district court's grant of summary judgment on the merits of Ms. Gonzales' Eighth
Amendment claim de novo, applying the same legal standard used by the district court
under Fed. R. Civ. P. 56(c) and viewing the evidence in the light most favorable to the
nonmovant. Seymore v. Shawver & Sons, Inc., 111 F.3d
794, 797 (10th Cir. 1997).
Summary judgment is appropriate only if there is no genuine issue as to any material fact,
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Thus,
we ask the "threshold question: Taken in the light most favorable to the party asserting
the injury, do the facts alleged show the officer's conduct violated a constitutional
right?" Saucier v. Katz, 533 U.S. 194, 201 (2001).(17)

IV. Deliberate Indifference

We preface each foray into this difficult area ("Prisons are necessarily dangerous
places; they house society's most antisocial and violent people in close proximity with
one another." Farmer, 511 U.S. at 858 (Thomas, J., dissenting))
with the Eighth
Amendment proviso requiring "prison officials to 'provide humane conditions of
confinement,' which includes taking 'reasonable measures to guarantee the safety of
inmates.'" Giron v. Corr. Corp. of America, 191 F.3d 1281, 1285
(10th Cir. 1999),
quoting Farmer, 511 U.S. at 832; see also, Barney
v. Pulsipher, 143 F.3d 1299, 1310
(10th Cir. 1998). Thus, in a claim that officials failed to prevent harm, an inmate must
show, first, "she is incarcerated under conditions posing a substantial risk of serious
harm," and, second, that officials had a "sufficiently culpable state of mind."
Farmer,
511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297
(1991)). "Thus, the
deliberate indifference standard in a prison-conditions case is a 'subjective' and not an
'objective' requirement. That is, a prison official is liable only if the 'official knows of
and disregards an excessive risk to inmate health and safety.' It is not enough to
establish that the official should have known of the risk of harm."
Pulsipher, 143 F.3d
at 1310 (quoting Farmer, 511 U.S. at 837).

Further, as stated in Pulsipher, a plaintiff's uncontroverted
claim of "deprivations
resulting from sexual assault" are "sufficiently serious to constitute a violation under the
Eighth Amendment." Id. In both
Hovater and Pulsipher, however, a
constitutional
violation was not found because the only proof of prison officials' knowledge of a
substantial risk of serious harm to a female inmate and failure to protect was predicated
on the existence of a per se violation of a written jail policy. In
Hovater, the policy
dictated that a male guard never enter a woman's cell alone, except in an emergency, 1
F.3d at 1068; and, in Pulsipher, two jailers were required to be
present when female
prisoners were removed from their cell, 143 F.3d at 1310-1311. We explicitly stated in
Hovater, however, "[h]ad Sheriff Hill possessed information that
Mr. Robinson as an
individual posed a threat to the safety of female inmates, our decision would be
different." 1F.3d at 1068.

Material facts remain in dispute on Ms. Gonzales' Eighth Amendment claim that
stand in stark contrast to the absence of any such evidence in Hovater
and Pulsipher.
Here, Ms. Gonzales did not rely upon any official policy which could be substituted for
Sheriff Salazar's knowledge the Huerfano County Jail where she was assaulted was not a
safe place.(18) Instead,
viewing the evidence in a light most favorable to her, as we must, it
may be fairly inferred Sheriff Salazar's purported ignorance of the dangerous conditions
in the jail was a direct result of his lackadaisical attitude toward his responsibility to run
the institution. An inference of the sheriff's lack of responsiveness can also be drawn
from other facts.

First, Sheriff Salazar explicitly stated his Jail Administrator did not want to
investigate allegations of problems at the Jail. Second, the evidence indicates the
sheriff's consistent willingness to ignore inmate complaints by attributing them to
attitudes of the complainants, characterizing them as "troublemakers" or "conjuring up"
incidents to "discredit" his deputies," allowed him to excuse his failure to pursue the
issues any further. Finally, and most astonishing, when first advised two visibly "upset"
female inmates accused two of his jailers of sexually assaulting them, he not only left the
prisoners unprotected in the jail, but also in the custody and control of the very men
accused of the assaults. When the women were removed for their protection, the
decision to do so was not made by Sheriff Salazar, but by the District Attorney. None of
this evidence is controverted, and its significance was seemingly ignored by the district
court.

Finally, we are constrained to note the district court misread
Farmer, believing it
required Ms. Gonzales to show Sheriff Salazar specifically knew Major Bob posed a
substantial risk of harm to her. Rather, the Farmer
Court noted a prison official could
not escape liability by showing although "he was aware of an obvious, substantial risk to
inmate safety, he did not know that the complainant was especially likely to be
assaulted
by the specific prisoner who eventually committed the assault." 511 U.S. at 843
(emphasis added). "[I]t does not matter whether the risk comes from a single source or
multiple sources, any more than it matters whether a prisoner faces an excessive risk of
attack for reasons personal to him or because all prisoners in his situation face such a
risk." Id.

Theundisputed evidence of the physical assaults on inmates set
against the facts of
Sheriff Salazar's knowledge of reportedrisks to inmate health or safety,
including the
documented lapse of security in the control room, complaints of sexual harassment and
intimidation, Dominick's demotion for, as Sergeant Zudar characterized it, "a
combination of things," as well as the presence in the record of Ms. Tefteller's letter,
which she attested was handed to Major Bob, surely raise a reasonable inference that
Sheriff Salazar knew of and disregarded an excessive risk to Ms. Gonzales. Under these
circumstances, at the least, Ms. Gonzales has raised a triable issue ofmaterial
fact that
Sheriff Salazar had the "requisite knowledge of a substantial risk," which,
Farmer
acknowledges, may be demonstrated "in the usual ways, including inference from
circumstantial evidence." 511 U.S. at 842 (emphasis added).

In the interstice between the facts presented and the inferences arising from
evidence of Sheriff Salazar's knowledge of activities at the Jail, this triable issue was
prematurely dismissed at the summary judgment stage. Left on remand is for the trier of
fact, then, to decide whether these inferences are sufficiently strong to cast constitutional
responsibility on Sheriff Salazar's conduct. We therefore REVERSE the
district court's
order granting summary judgment and REMAND for further proceedings.

FOOTNOTESClick footnote number to return to corresponding location in the text.

1.In his deposition, Sheriff Salazar stated the
jail administrator is in charge of
overseeing and monitoring all operations at the Jail, including the control room, booking,
security, meals, medical needs, and employee paperwork. Although Martinez held the
title, "Major," and was called Major Bob in the Jail, Sheriff Salazar indicated Martinez
asked for the title. As jail administrator, Major Bob reported directly to Sheriff Salazar,
whose wife is Martinez's niece.

2.Ms. Gonzales had then served about a week
of a 30-day sentence imposed for her
failure to appear in court on a pending charge. Except for when she was sent to Fort
Logan, Colorado, after her father killed her mother, she had never been incarcerated
before.

3.Ms. Guel filed similar claims against the
same parties. After settlement, the
district court dismissed her case.

4.Tereza Gonzales and Dominick Gonzales are
not related. However, Dominick
Gonzales is Sheriff Salazar's son-in-law. To avoid confusion, Dominick Gonzales will
be referred to as "Dominick."

5.At that time, the control room, the command
center for Jail security, housed video
cameras to monitor some areas of the Jail.

7.Curiously, neither the district court nor
defendants have challenged Ms.
Gonzales' designating "Huerfano County" as defendant. Under Colo. Rev. Stat.
§ 30-11-105, "the name in which the county shall sue or be sued shall be, 'The
board of
county commissioners of the county of ...........'" "This statutory provision provides the
exclusive method by which jurisdiction over a county can be obtained. An action
attempted to be brought under any other designation is a nullity, and no valid judgment
can enter in such a case." Calahan v. Jefferson County, 429 P.2d
301, 302 (Colo.
1967). Were we to overlook this jurisdictional flaw, we are still guided by
Bristolv. Bd.
of County Comm'rs of Clear Creek, 312 F.3d 1213, 1215 (10th Cir. 2002) (under
the
Colorado constitution, the County Sheriff is a distinct position, separate from the Board
of County Commissioners). The only claims Plaintiff made against the County were
based on a faulty premise. She asserted the County owed her a duty "to employ
competent law enforcement officers and to supervise the conduct of its sheriff and Chief
Jail Administrator." That is not a valid premise under Colorado law.
Id. Had Plaintiff
claimed the Sheriff set official policy of the County or was following policy established
by the County in the operation of the jail, we might have to reach a different conclusion.
Seeid. at 1221 ("counties can be held liable for the misdeeds of
Sheriffs and their
employees when the Sheriff is held to set 'official policy' for the county."). Yet, whether
because of the plain language of the statute or the Plaintiff's failure to state a valid claim,
the action cannot lie against Huerfano County.

8.Her second claim for negligent supervision
against Sheriff Salazar and Huerfano
County is subsumed within the first. Her third claim for assault and battery against
Major Bob and Dominick, was dismissed with prejudice after the district court dismissed
the § 1983 and negligent supervision claims.

9.Sheriff Salazar stated "Mike" although the
record consistently refers to Sgt. Paul
Zudar.

10.Mr. Maldonado also reported he was
beaten again on October 31, 1997, without
any intervention by guards. In his deposition, Sheriff Salazar did not remember whether
the investigation of these complaints established any fault on Dominick's part but
believed Dominick was not disciplined. Mr. Maldonado's attorney apparently did not
pursue an initial intent to sue notice.

11.Sheriff Salazar agreed a third woman,
Barbara Garcia, verified Ms.
Flecksteiner's report as well, although her statement is not in the record.

12.She wrote, "[t]he other women will not
back me up - they will probably ostracize
me for this. Frankly, I don't care. I would like to do my time in peace & be left alone. I
see no reason for our privileges to be up to the whims of Sgt. Gonzales. . . ."

14.Miguel Duran was a sheriff's deputy at
the Jail before he was seriously injured
while driving a Sheriff's vehicle in a storm.

15.The bouncers described Dominick as
"very big" and were scared by his threats to
injure them.

16.She described his angrily answering her
call after her "blood pressure shot up,"
saying "he had a bone to pick with me. Didn't I know Bob tells him everything I tell him
(Bob) & who they have in the control room is their business? (Referring to the Monday
night party.)" She wrote that Dominick "seems to enjoy" antagonizing inmates. "I'm
afraid someone, someday, is going to hurt that boy badly."

17.This standard of review does not ignore
the fact that, in the end, defendant still
bears the usual summary judgment burden of showing that no material facts remain in
dispute that would defeat the qualified immunity defense. Farmer v.
Perrill, 288 F.3d
1254, 1259 (10th Cir. 2002).

18. Indeed, in 2002 deposition testimony
submitted in Defendants' supplemental
appendix, Sheriff Salazar described instituting written policies and procedures, including
hiring additional female staff and new hiring practices, to address a 2001 incident
involving four counts of sexual assault of a female inmate by a male detention officer in
the Jail.